Child Custody and
Visitation

Best
interests of child determine who gets custody.

Child custody can take
one of several forms. Sole custody gives one parent physical custody
of the child as well as legal custody, the right to decide how the
child is to be raised. Sole custody has traditionally been the most
common custody arrangement in the United States.

In the past dozen years,
however, a number of states have expressed a preference for awarding
joint legal custody. In a joint custody arrangement, both parents
theoretically share in making decisions about how the child is raised.
In most joint custody arrangements, sole physical custody is given to
one parent so that the child can enjoy a relatively stable home
environment. However, joint physical custody, in which the child lives
for alternating periods with each parent, has also been awarded. Many
experts feel that this arrangement can be more difficult for the
child, and such arrangements are rare.

Joint custody
arrangements require the cooperation of both parents in making
decisions about issues such as schools, religion and outside
activities. If the divorce is bitter and there is a great deal of
conflict between the parents, however, a sole custody arrangement is
probably preferable. In fact, some states still look with disfavor on
joint custody arrangements, or prohibit them entirely, because they
feel that parents who cannot live together probably will have a
difficult time in agreeing on how to raise their children.

Whatever form custody
takes, state laws require that the arrangements be in the best
interests of the child. At one time, courts almost universally awarded
sole custody to the mother, believing that the child's mother was the
best person to raise the child. Today, courts are supposed to consider
which parent has been the more active participant in raising the child
when deciding on granting custody. Even so, the vast majority of
children remain with their mothers after divorce.

A parent who does not
receive physical custody is entitled to reasonable periodic visitation
with his or her child, which usually takes place in the non-custodial
parent's home. However, if there is a reasonable and provable fear
that the parent may harm the child, or has been guilty of abuse in the
past, the court can either require supervised visitation or deny it
entirely.

The vast amount of media
attention provided to the issue of child abuse, particularly sexual
abuse, has led to a marked increase in the number of charges of abuse
hurled by one parent against another during divorce proceedings.
Because such accusations must be treated seriously by a court in
deciding issues of custody and visitation, even clearly unfounded
claims of abuse must be investigated. As a result, divorce and custody
proceedings can drag on for months longer than necessary, with the
parent accused of child abuse prohibited from visits with the
children, or allowed to visit them only under supervision by a person
authorized by the court. In a number of cases, allegations of abuse
have been used as a tool to injure the reputation of one spouse, or as
a way to extort additional support money.

No one would argue that
a child abuser should be allowed the same custody or visitation rights
as other parents. However, no parent who has not abused his or her
child should ever be silent in the face of such accusations. If you
have been wrongfully accused of child abuse, there are several
organizations which can provide you with support, advice, and in some
cases, even legal assistance. One such organization with chapters in
many parts of the country is VOCAL (Victims of Child Abuse Laws). Your
attorney can help put you in contact with this group or other similar
groups in your area.

Although it may seem
unfair to require a parent to pay support when the parent who has
custody denies visitation, in the eyes of the law the issues of
visitation and child support are not connected. As a result, even if
visitation is denied by the custodial parent, child support payments
must still be made as ordered. Rather than withholding payment of
court ordered child support in retaliation for being denied
visitation, the non-custodial parent must petition the court to
enforce visitation rights.